Author: Tal Schreier

Asper Centre at the Supreme Court of Canada Twice Next Month

Posted on by Tal Schreier

 

The Asper Centre will be at the Supreme Court of Canada (SCC) as an intervener in two separate cases next month: Gillian Frank v Attorney General of Canada and Spencer Dean Bird v Her Majesty the Queen.

First up on March 16, 2018 is our intervention in Bird, an important case about prisoners’ rights in Canada.  In this case, the appellant was sentenced to a penitentiary term followed by a period of long-term supervision. The Parole Board determined that this supervision would begin with the appellant residing at a community correctional centre. Upon completing his penitentiary term, the appellant arrived to the designated correctional centre to commence the period of long-term supervision but soon left. He was apprehended and charged with failure to comply with the conditions of his long-term supervision. He argued that the residency requirement was unlawful. The trial judge agreed, finding that his being forced to reside in penal institution after completion of his prison term violated his s. 7 Charter rights. The Court of Appeal allowed the appeal, ruling that the trial judge erred in permitting the appellant to collaterally attack the residency requirement.

The Asper Centre factum argues, with regard to the proper application of the collateral attack doctrine, that the Maybrun framework should consider constitutional and access to justice issues. Our factum can be found here.

Less than a week later, on March 21, 2018, the Asper Centre will be intervening in Frank, a case focused on the voting rights of Canadians residing outside of Canada. In Frank, the applicants are Canadian citizens residing in the United States for employment reasons, who intend to return to Canada if circumstances permit. Both applicants were refused voting ballots for the 2011 Canadian General Election since they had been resident outside Canada for five years or more. The applicants sought a declaration that certain provisions of the Canada Elections Act violated their Charter-protected right to vote. A judge of the Ontario Superior Court of Justice declared the impugned provisions of the Act unconstitutional by reason of violating the applicants’ right to vote under s. 3 of the Charter, and the violation was not justifiable under s. 1.

The Asper Centre factum addresses the “social contract” argument that has been used to support revoking a Canadian citizen’s right to vote if they do not live in Canada. Our factum can be found here.

 

 

A Quick Comparison: The Recent Solitary Confinement Rulings by BCSC and ONSC

Posted on by Tal Schreier

By Ryan Howes

The British Columbia Supreme Court (BCSC) and the Ontario Superior Court of Justice (ONSC) have both recently ruled that the current correctional practice of administrative segregation (or solitary confinement) is unconstitutional. Both ruled the impugned provisions of the Corrections and Conditional Release Act (CCRA) are invalid pursuant s. 52 (1) of the 1982 Constitution Act. Both granted a 12-month suspension to permit Parliament sufficient time to adjust the provisions accordingly.

The BCSC ruled that ss. 31-33 and 37 of the CCRA are invalid because they violate ss. 7 and 15 of the Charter. The CCRA procedures regarding administrative segregation permitted indefinite segregation, failed to ensure independent review of administrative decisions, and deprived segregated inmates their right to counsel at segregation reviews and hearings. The court found this amounted to a violation of s. 7 rights that could not be saved under s. 1. The psychological harm caused by segregation contributed to inmate violence more than it protected safety and the administrative safeguards in place failed to adequately address these psychological harms. S. 31(1) of the CCRA defined administrative segregation broadly as “not allowing an inmate to associate with other inmates.” The CCRA permitted segregation when it was not necessary for protecting safety and security, and was therefore found to be overbroad. The effect of these legislative and administrative failures was that mentally ill and Aboriginal inmates were disproportionately targeted for segregation. The BCSC found this amounted to a violation of s. 15 equality rights.

The ONSC decision differed in that it did not address s. 15 equality rights and the court impugned ss. 31 – 37 of the CCRA. The focus was on the procedural violations of s. 7 Charter rights. The court found CCRA permitted procedures contrary the principles of fundamental justice because it concentrated decision-making power regarding administrative segregation in the Institutional Head and lacked appropriate independent review processes. The administrative expediency that this single decision-maker model afforded was insufficient to justify such a lack of accountability, especially operating within a legislative scheme that permits indefinite segregation. The ONSC held that ss. 31 – 37 of the CCRA violated s. 7 of the Charter and could not be saved under a s. 1 analysis.
Both rulings provide Parliament with 12 months to remedy the identified procedural shortcomings of the CCRA condoned practice of administrative segregation.

Taking the two rulings together, Parliament must provide for an administrative model with greater independent review, more legislative specificity as to what and when solitary confinement is appropriate, and additional safeguards that effectively address the consequent psychological harms in order for solitary confinement to be constitutional.

Ryan Howes is a JD Candidate at the Faculty of Law and is the Asper Centre work-study student.

Asper Centre Students in Focus – Natasha Anzik

Posted on by Tal Schreier

by Ryan Howes

Natasha Anzik worked as a summer research student at the Asper Centre last year for her 1L summer. Natasha was interested in working in constitutional law because she recognizes that it is the “driver of social change.”

“I am very happy that I decided to work with the Asper Centre,” said Natasha, despite having had other options available to her. “Constitutional law is a niche area of law with a lot of opportunities and very passionate practitioners.”

Natasha worked on a variety of projects over the summer, including research into Supreme Court of Canada intervention opportunities and possible arguments. She collaborated with lawyers from the Canadian Association of Refugee Lawyers on work that led to the formation of the Asper Centre’s current Refugee and Immigration student working group, which Natasha now co-leads.

“The opportunity to network and meet lawyers doing interesting work was a huge asset in retrospect,” reflected Natasha. “The Asper Centre is outstanding for that and does really interesting work.”

Natasha was even involved in the government consultations on the issue of physician-assisted dying, assisting Cheryl Milne in this capacity, the Asper Centre’s executive director.

“As a woman entering the legal profession, it was a unique and inspiring experience to work with Cheryl Milne.”

Now Natasha is serving in a mentor role, supervising the 1L’s in her Refugee and Immigration  student working group. “It’s rewarding reflecting back on 1L, seeing so much progress, and being able to pass on some of the benefits of my experience to the 1Ls I now mentor at the Asper Centre.”

“I would certainly recommend the Asper Centre summer position; there are so many things to get involved with. Students realize in hindsight what a great opportunity it was.”

Ryan Howes is currently a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s work-study student.

 

Panel Discussion with TWU Interveners’ Counsel

Posted on by Tal Schreier

By Erika Voaklander and Solomon McKenzie

At the end of 2017 the Supreme Court of Canada (SCC) heard arguments in the two Trinity Western University (TWU) appeals. The results of the appeals may have wide and deep impacts on the legal profession and on Canada more broadly.

On January 18, 2018, the Asper Centre, Out in Law UofT, the Journal of Law and Equality, and the Christian Legal Fellowship of UofT Law co-hosted a discussion panel, showcasing counsel for interveners on the TWU appeals. The panelists were Joanna Radbord (Advocates’ Society), Angela Chaisson (LGBTOUT), Barry Bussey (Canadian Council of Christian Charities), Paul Jonathan Saguil (Start Proud/Outlaws), Derek Ross (Christian Legal Fellowship), and Chris Palliare (Advocates’ Society).

Trinity Western University is a private Christian university in British Columbia. TWU wanted to open a law school. The school provides an education founded on evangelical Christian principles. TWU’s approach to community development is expressed in a community covenant, a code of conduct that encourages its students to live by Biblical teachings. Amongst other considerations, the covenant prohibits sexual intimacy that violates the sacredness of marriage, as defined as between a man and a woman. Unmarried individuals are expected to live celibate lives. While LGBTQ students are permitted to attend the university, TWU would prohibit admission to its law school if a student refuses to sign the covenant.

The appeals involve legal challenges to decisions by the law societies of Ontario and British Columbia. Ontario decided to deny the accreditation of future TWU law graduates. The Court of Appeal of Ontario held that Law Society of Ontario’s (LSO) statutory mandate to act in the public interest entitled it to refuse to accredit TWU’s law school. The LSO refused to accredit on the basis that the covenant was discriminatory. BC, on the other hand, initially approved accreditation, but reversed this decision based upon a referendum it held with members. The BC Court of Appeal upheld the lower court’s decision to overturn this second decision.

The panel discussion explored the case, other legal precedents and wider considerations of constitutional advocacy. In their general discussion of the case, Chris Palliare highlighted that the SCC’s decision would likely hang on how the court defines and places boundaries on the freedom of religion enshrined in the s. 2(a) Canadian Charter of Rights and Freedoms. Additionally, Barry Bussey noted that this issue also turns on jurisdiction, notably whether the Law Society of Ontario has the right to bar membership.

An early fault line in the discussion was when the panelists considered the 2001 TWU v British Columbia College of Teachers (BCCT) case. Both Angela Chaisson and Joanna Radbord suggested that there have been many social and legal changes around LGBTQ+ rights since the finding in BCCT. Angela Chaisson asserted that the two cases were overwhelmingly dissimilar, involving different parties and underlying statutes, and with Canadian society having substantially progressed on LGBTQ+ rights since 2001. By comparison, Barry Bussey asserted the similarities between the two cases, and warned that a finding that essentially overturned BCCT would have a knock-on effect on evangelical and other religious communities’ abilities to continue to operate professional and educational facilities.

In considering the long-term impact of the TWU appeals, Derek Ross stated that the Court was at a crossroads in its recognition of religious communities’ freedom of association (s. 2(d) of the Charter). He warned that there could be deleterious impacts on the rights of religious communities. He noted that the Court supporting the LSO would be tantamount to finding it acceptable for state actors to quash the rights of groups externally assessed to have distasteful beliefs. Chris Palliare questioned the relevance of s. 2(d) to this case, and maintained that the analysis should focus on s. 2(a) religious freedom rights. Both Barry Bussey and Derek Ross stressed that a finding against TWU would have extensive and negative impacts on religious rights.

In considering what this ruling would mean to LGBTQ+ rights, Joanna Radbord noted that given the fixed number of law school spaces, allowing accreditation would diminish the ability for LGBTQ+ students to access law school. She also stressed that drawing evangelical students to one law school would intellectually impoverish the legal community at large, by hindering fruitful and diverse discussion. She highlighted the panel as an example of how law schools should act as meeting places of diverse worldviews. Paul Johnathan Saguil noted that he could have seen himself going to TWU at an early stage in his life, which would have had long term and negative impacts on his development. Angela Chaisson noted that the case was not necessarily zero-sum, and there could still be positive impacts for LGBTQ+ rights encapsulated in an adverse decision.

Finally, the group discussed the impact of the recent changes to the length of submissions by interveners down to 5 minutes of oral advocacy. Chris Palliare intoned that this was a mistake, stressing that the Court should accept fewer interveners, speaking for longer periods. Derek Ross noted that a greater number of perspectives was always welcome. Barry Bussey remarked that the new time limit meant that submissions had to be drafted in a strategic manner. In his preparation, he found that 5-minute submissions constituted 500 spoken words, a very limited space for nuanced reflections. Angela Chaisson agreed that fewer interveners were important, but that the SCC needs to start promoting the voices of people directly affected by the law. She questioned the validity of the court’s initial decision to grant no LGBTQ+ groups intervener status. Joanna Radbord noted the incredible role modelling that comes from having queer women as advocates before the SCC.

All the panelists stressed the importance and rewarding nature of constitutional advocacy. They underscored that interested students and lawyers should seek out pro-bono activities, actively pursue this type of work through their firms, connect to ongoing efforts through their own communities, and look to the David Asper Centre for opportunities.

Erika Voaklander is a 1L JD Candidate and member of Out in Law UofT and Solomon McKenzie is a 2L JD Candidate at the Faculty of Law and is co-leader of Out in Law UofT.

Beverley McLachlin: Reflecting on 18 Years and Beyond

Posted on by Tal Schreier

By Catherine Ma

CBC’s Sunday Edition recently interviewed former Chief Justice Beverley McLachlin prior to her retirement. Chief Justice McLachlin reflected on her own career, as well as the legal system at large.

Chief Justice McLachlin emphasized the need for “conscious objectivity” in the legal system: “The job of a judge is not to simply say, ‘I like this person better than that or I like this story.’ You have to give everyone a fair hearing, and that means not just listening passively but trying to understand what their problem is, where they are coming, and why they acted the way they did.” Judges must understand a dispute completely in order to determine the appropriate outcome.

Chief Justice McLachlin discussed the importance of the Charter of Rights and Freedoms. She noted that the Charter empowered courts to examine if legislation breached individuals’ rights or freedoms; when a breach arose, the Charter declared that the legislation was null and void to the extent of the conflict. Chief Justice McLachlin acknowledged concerns about judicial activism, but she assured that courts ensure their rulings are “not disruptive to society.” Courts can delay when a legislation is deemed null and void in order for the legislature to have enough time to pass new legislation and thus avoid a legislative vacuum. Chief Justice McLachlin stressed that the Charter has become “quite popular and highly supported” by most Canadians as well.

Chief Justice McLachlin re-iterated the Canadian state has perpetuated cultural genocide of Indigenous Peoples. She described government policies as “the undermining or attempted annihilation of a culture.” Government policies have forbidden Indigenous practices, as well as forcibly placed Indigenous children in Indian Residential Schools. Chief Justice McLachlin suggested that the legal system must move beyond an adversarial system and embrace alternatives, particularly for Indigenous youth who commit minor crimes; otherwise, vulnerable individuals are placed into the system and driven towards more crime. She added that early intervention could stop Indigenous children from coming into contact with the system completely.

This interview caused me to pause and reflect upon milestones during Chief Justice McLachlin’s tenure. She made history as the first woman appointed as Chief Justice of the Supreme Court of Canada. Chief Justice McLachlin steered the Court through historic cases. Just some of these cases include:
• Reference re: Same-Sex Marriage, upholding the constitutional validity of same-sex marriage;
• Haida Nation v. British Columbia, which outlines the Crown’s duty to consult Indigenous Peoples;
• Carter v. Canada, where the Court recognized a right to assisted death;
• R v. Nur, striking down mandatory minimums for gun crimes; and
• Daniels v. Canada, where the Court declared that non-Status Indians and Métis are “Indians” for the purposes of s. 91(24) of the Constitution Act.

Looking at the jurisprudence affecting Indigenous Peoples, Chief Justice McLachlin’s stance has changed over time too. Early in this role, Chief Justice McLachlin wrote the Mitchell decision that found insufficient evidence to support finding the Mohawks of Akwesasne had a right to cross-border trade. Her conclusion put an undue burden on Indigenous Peoples to prove their rights. But over time, Chief Justice McLachlin recognized other Aboriginal rights. She authored the Tsilhqot’in decision that recognized Aboriginal title. She entrenched the idea that the Crown has a duty to consult and accommodate Indigenous Peoples. In that sense, I believe that Chief Justice McLachlin has created some space for the Crown and Indigenous Peoples to enter a more respectful dialogue.

Most striking is that Chief Justice McLachlin acknowledged that Canada has committed cultural genocide against Indigenous Peoples – a controversial statement given her position and the prevailing sentiment at that time. Her willingness to speak truth to power is a call to action for us, as law students and lawyers, to work harder at ensuring that the legal system is truly fair for all peoples.

Catherine Ma is a 2L JD Candidate at the Faculty of Law and the co-leader of the Asper Centre’s current Indigenous Rights student working group.